The Hearing Podcast: How not to retire, with Sir Rupert Jackson

The former Court of Appeal judge and controversial costs reformer is still loving life in the law

Image credit: 4 New Square

“The retirement age of 70 is too young”, according to Sir Rupert Jackson, and the former Court of Appeal judge has found creative ways around it. He’s off to sunny Astana as one of the first justices of Kazakhstan’s new commercial court, as well as doing arbitrations back at 4 New Square, where he practised for 25 years before becoming a High Court judge in 1999.

The jet-setting lifestyle is a far cry from Jackson’s start in chambers, he tells Kevin Poulter in the latest edition of The Hearing podcast. A first six spent in personal injury led to an invitation to join another set doing, basically, anything. Jackson says:

“I didn’t have any particular ambition as to a specific area of law to practice in. I was very happy to do crime, civil, family or whatever work came my way… in the 1970s, a particular specialisation never occurred to me. I just wanted to be a barrister.”

Nowadays, baby barristers tend to specialise earlier, Jackson thinks. But developing advocates can probably relate to his early travails in front of the court. Asked how his early time on his feet went down with judges, he tells Poulter: “It went down variably. There was one magistrate in London who said that I had delivered the most absurd mitigation he had ever heard, which was not encouraging.”

And, then as now, life at the bar is all about putting in the hours. The former judge advises junior lawyers to “roll up your sleeves, work all evening, work all weekend — do whatever the case requires” if they want to make it.

Saturdays in the office aside, Jackson dates his own big break to the first edition of Jackson & Powell on Professional Liability, now the standard text on the subject — “it brought in a fair amount of new work”.

Jackson is also famous for his epic review of civil litigation costs, which took him the whole of 2009 to complete, working on it full time. He continued to take an interest in the progress of the controversial changes even after returning to the bench, helping out in a very judicial way: “if I thought things were going wrong, I’d give a lecture pointing out where things weren’t going quite as I’d hoped”.

He’s even dashed off a “little book” to explain the point of the reforms to practitioners. Jackson, who could be scathing as a judge, is at his most animated on the subject of legal aid. He says:

“I greatly regret the cutbacks in legal aid which have led to the increase of litigants in person. I have always vigorously argued for the maintenance of legal aid at the original levels. I think the cutbacks in legal aid were a big mistake. Litigants in person take up more court time. At the end of the day savings in legal aid are more than offset by the additional cuts to the system.”

He takes particular exception to the widespread notion that the cuts were anything to do with his review — in fact, Jackson says, they were “directly contrary to my recommendations”. One “very senior QC” is singled out for spreading this myth. Legal Cheek couldn’t work out the identity of the unnamed offender, despite the several hints dropped, but perhaps other listeners can…

26 Comments

Mr.Charles

Regularly run into R.J. at the Inn. He is a lovley man and a great intellect. Good role model for aspiring barristers.

(3)(5)

Anonymous

Jul 6 2018 10:55am

The introduction of costs budgeting and, in particular, the precedent H and CCMC regime is the most counter productive legal reform of all time. Bain of my life.

(15)(1)

Anonymous

Jul 6 2018 11:34am

Hey, I know a great way to control costs in civil litigation. Why don’t we introduce an *additional* layer of adversarial litigation into even the most mundane claim and expand CMCs from 15 minutes to half a day? What brilliance. The Court of Appeal has sooooo much spare capacity these days, they can easily spare a senior LJ to spend a year – a f*cking year – to come up with that rather than hearing cases.

(11)(0)

Anonymous

Jul 6 2018 3:23pm

It was a rouse to collect all cost budgets and use thus to set capped fees for phases of work to help insurers drive down costs and set accurate reserves.

(14)(0)

Anonymous

Jul 6 2018 3:53pm

such a bonkers system. inflated numbers, with room for contingency, now routinely waived through without any scrutiny. almost the exact opposite of what was intended!

* Education: Christ’s Hospital and Jesus College, Cambridge;
* Bar in 1972 (Middle Temple), a Bencher in 1995; Queen’s Counsel in 1987; Deputy High Court Judge in 1993. appointed a Judge of the High Court of Justice, 1999; Lord Justice of Appeal, October, 2008.. Privy Council blah blah blah.” https://en.wikipedia.org/wiki/Rupert_Jackson

It could be assumed there should be a reasonable (hypothetical) standard for an Oxbridge educated Court of Appeal judge such as Jackson, R. (Bolam – professional duty of care standard). It requires a reasonable person standard for analogy as this is not just a feature of tort but of employment tribunals, criminal law, and family law (but more watered down – as C Wright Mills may say nowadays, about family courts, the experts go through one door, a social worker; come out another door as Independent Review Officer, come out another door as Independent Social Worker; a child adoption business; a solicitor/ barrister go out of one door and come another as District or High Court judge; a family court judge goes out of one door and comes in as a child adoption business (Mills, C, W., The Power Elite).

Jackson on public funding:

“I greatly regret the cutbacks in legal aid (‘2010’) which have led to the increase of litigants in person….I think the cutbacks in legal aid were a big mistake. Litigants in person take up more court time. At the end of the day savings in legal aid are more than offset by the additional cuts to the system:” Jackson R.

Jackson, R. on un-foreseeability

“He takes particular exception to the widespread notion that the cuts were anything to do with his review — in fact, Jackson says, they were ‘directly contrary to my recommendations’. One ‘very senior QC’ is singled out for spreading this myth.”

‘Counsel for both sides must make disclosure of all the material evidence whether it is beneficial or critical to the merits of his or her case’ (disclosures rules start off point, notwithstanding the public interest blah blah blah). The Conservative Government has just been elected; It is known these are savages in terms of public fund super stream-liners and given the chance these out of touch, usually millionaires will never look the proverbial public fund gift horse in the mouth.

Guidance:
If you leave any door open in a Parliament Act it will create statutory instruments with more power than a Parliament Act (See Hart). You will note the Conservative Government make up to 3000 statutory instrument in any one year (see legislation.gov). If you leave any recommendation door open it is not binding but beware the opponent could use it as part of their case against you. What is good disclosure for the goose is also good disclosure for the gander.

Jackson R. on LIPs:

Notwithstanding the above analogies, Jackson conducted the review of all court costs (2010 report). Jackson says litigants in Person can claim up to £20 an hour (which includes Billy ‘I don’t even know my own name who has an IQ below 70’ On the Street; as well as business professionals with company profits in the billions. So the best lawyers can claim for 100s of thousands or millions (if their client is a millionaire, or billionaire called Vladimir, a heir to an oil or gas reserve with profits equivalent to small country’s economy).

Jackson says ‘LIPs take up more time.’

This is code for the opponent is therefore an ‘officer of the court’ and the LIP (except the business professionals in this vibrant £2.5 trillion economy) does not know his rights (because he/ she doesn’t have a lawyer owing to the Jackson review which led to the axe-wielding public fund cutters) to ask opposing counsel or solicitor a point in law. The LIP in the family courts can barely string a sentence and yet they’re somehow supposed to bring or a defend a case. How can intelligent people like Jackson, R. be so incredibly dumb. How can this ‘towering intellect’ not foresee these events that his review will have especially on the more vulnerable elements of society, is a good question. How could an Oxbridge educated Court of Appeal judge even relate to Bill average on the street. Would Billy still be subject to the ‘Omnibus’ reasonable person standard in terms of accessing court costs? Intelligent people are simply out of touch and know their recommendations are just that. One would have to be incredibly stupid (Tory boy, Harry Enfield’s character) to not know that any recommendations which in principle seem like a good idea to save the public purse will in its eventually realise the final cut.

Tory is like subliminal for savage public costs cutting (the mad hatter becomes the mad public funds’ axe cutter). It does not take an axe to crack a nut (a metaphor from Northern Ireland legal system discussion an article pertaining to family law on human rights principles of proportionality).

Family courts: the sober version

Those who are most affected in my view, and in my anecdotal experience are the lower social class in public law aspects of ‘family law.’ McDonaldisation on crack. The secret courts – the ones were a high court injunction becomes the effect of a high court injunction order in effect in the family courts, where verbal and written statements by the lower court family court judge do not coincide. Welcome to plastic legal justice and the plastic legal system. For legitimisation, see Allen on Constitutional case law and materials (paraphrasing).

NB I am dyslexic – so don’t be a grammar Nazi. I have BSC and LLB after my name, do you? Concentrate on the ideas – not the structure or sentences so much. Ideas and views are more important than anything else.

(5)(23)

Anonymous

Jul 6 2018 3:55pm

Chippy McChip Chip

(11)(0)

Anonymous

Jul 9 2018 10:14am

“Concentrate on the ideas – not the structure or sentences so much” – you sound like a model for a LIP, so why the boasting about your law degree?

(0)(0)

Demos Craticus

Jul 6 2018 4:21pm

6 pompous whingeing sods didn’t like my post. What’s the average IQ of a barrister. Hmm average at best. Barristers live in a different world to everybody else; and the privileged classes may as well live in Narnia.

(0)(13)

Anonymous

Jul 6 2018 8:15pm

Hmmm witty reply? Why bother. Make that 7.

(0)(0)

Anonymous

Jul 6 2018 10:49pm

You need a little lie down and a nice chat with a nice man.

(2)(0)

Anonymous

Jul 6 2018 5:24pm

This old fool should get with the programme. Young lawyers today dont want to work all hours for incremental gains

(9)(1)

Anonymous

Jul 6 2018 11:17pm

Demos, I think your posts have potential.

I don’t think you should keep taking the space to credit c wright mills and others. It interupts the flow and the propensity to do it means you are not as precise or concise as you clearly can be.

Barristers can be picked off and humiliated by a rigourous intellect. You have that. You need to try running down the wing and whipping a cross in, rather than going down the middle and crashing into the centre halves.

Stick with it comrade, post in 1/3 rd of the space and don’t bother crediting people too much , for me.

I thought the c wright mills idea of a particular officer goes in a door and another comes out was interesting, but it wasn’t clear on one reading.

Take fitness over alcohol too. If you are bright it is easy for m learned friends to crush your mental health, if you are not fit and strong.

My tuppence worth.

(1)(2)

Demos Craticus

Jul 7 2018 6:42am

What are you talking about you total moron!??

My post is not for comment or criticism. You ought to learn from me. Never answer me back you idiot.

You clearly can’t even spell so just shut up and go away.

(0)(7)

Anonymous

Jul 7 2018 11:12am

Lol. Where’s the spelling mistake ?

(0)(0)

Demos Craticus

Jul 7 2018 5:01pm

You are the mistake. You low down piece of dirt.

If you ever dare talk to me in that way ever again you will wish your bad breath was the least of your problems which it would be and I will wrap your wars around the RCJ and find out where you live and pee in your general direction.

No leave you cretin.

(0)(3)

Anonymous

Jul 8 2018 11:03pm

Blacker’s in

(3)(0)

Anonymous

Jul 7 2018 10:33am

Demos needs a hug.

He’s still feeling from his school bullying days.

(5)(0)

Anonymous

Jul 7 2018 2:10pm

I’m not sure he went to school.

(1)(0)

Demos Craticus

Jul 7 2018 5:19pm

Get lost you piece of dirt.

You are probably a solicitor or some other low level person . Now go!

(0)(2)

Anonymous

Jul 7 2018 7:10pm

Demos, I wasn’t being frivolous when I hinted that you will lose your mental health among these sharks.

I reiterate, your posts have potential, but you are 12 nil down.

Your written voice has become stupid and disrespectful. Neither are virtues.

(0)(1)

Demos Craticus

Jul 7 2018 9:32pm

You are 120 nil and down on your ass. You will find your life is worthless and you are a piece of dirt on my shoe and I hope you are run over by a church van you nasty little sea animal!

NOW GO!!

(1)(3)

Anonymous

Jul 7 2018 6:53pm

IT’S COMING HOME

IT’S COMING HOME

IT’S COMING

FOOTBALLS COMING HOME

#FOOTBALLLAW

(3)(1)

The Man on the Clapham Omnibus

Jul 8 2018 11:04am

Woo! Return of the king to frustrate Legalcheek’s moderators once more